Death & Justice

INTRODUCTION

WELCOME TO DEATH ROW

THEY CALL OKLAHOMA STATE PENITENTIARY AT MCALESTER THE WALL, and once you see it, you know why. At the entrance to the prison grounds, there’s a high, wide wall with guard towers at each corner. The Wall is made of brick that has been painted white so many times the paint itself has become part of its structural integrity. Some of the arches are beginning to sag or lean, but The Wall isn’t coming down.

I had come to McAlester to visit death row. I was researching the death penalty. There had been a series of high-profile releases of inmates from death row, several of them in Oklahoma, and I wanted to find out exactly what happened and why. The media has a way of simplifying crime stories so that they stray further and further from the truth the more attention is paid to them.

At first I suspected that most of the inmates released from death row might actually have been guilty of the crimes for which they were convicted. I’d seen it before. All convicts claim they are innocent, and sometimes their defense attorneys get their cases reversed on a technicality. Yet in several recent death row releases, there had been evidence like DNA that could not be dismissed as a technicality. Since 1977, more than one hundred inmates have been released from death row in the United States. Many of them had arguable claims of innocence. Some had clearly been railroaded, perhaps even intentionally framed.

Was there something wrong with the death penalty? I decided to look into it myself. As I looked at individual cases in isolation, I saw some terrible miscarriages of justice. Police had fabricated confessions. Criminalists had lied or enhanced evidence. Prosecutors had cut corners. I wanted to understand how this happened and why. So I decided to focus on one jurisdiction and examine several cases together, looking not just at innocent people who had been convicted but also at guilty suspects. I felt that the answer would lie not in the isolated cases but in the entire process itself. From arrest to execution over a period of several years and many different cases, I wanted see how the death penalty worked.

Oklahoma executed twenty-one convicts in 2001—more than any other state. Thirteen of those executed had been tried and convicted in one county by one district attorney. Oklahoma City, a relatively small jurisdiction, was producing an extraordinary number of death penalty convictions (and two innocent men had been released from death row). Oklahoma County, which encompasses Oklahoma City, seemed like a good place to conduct my investigation. I hoped to reach some conclusions about the death penalty.

I arrived at McAlester on Good Friday morning in 2002. It was the first day that felt like spring, and dozens of inmates on low-security work detail were out mowing the lawns and raking up the clippings. The smell of freshly cut grass and clover filled the air. All the lawns are well maintained. Everything is painted white. Even the inmates wear white pants and T-shirts that are white, except for the word inmate printed on the back. It was only nine o’clock and already warm. Their T-shirts were soaked with sweat.

You have to remind yourself that these people are convicted criminals. Don’t make eye contact. Don’t get too close to them physically. Watch your back, just in case. Because there’s another wall, the one that prison makes you put up between yourself and others—don’t show any emotion, any weakness, any sympathy, or any fear. If you do, someone will take advantage.

The people who work at McAlester never let themselves forget why the inmates are there. Outside The Wall is a collection of houses for prison administrators and employees, a neighborhood of sorts. The administrators drive from their nearby houses to their assigned parking spaces and stay, as much as they can, in their offices. When I arrived, no one was outside except the inmates and an occasional corrections officer. I didn’t see anybody who looked like a civilian resident. A nearby playground was empty.

Construction on McAlester began soon after Oklahoma achieved statehood in 1907, and the main building was finished in 1909 by inmates who lived in what are now the stables for the prison rodeo. The prison is well maintained: everything that can be polished or trimmed or painted has been. Across from the main entrance is the warden’s residence, a sprawling house, a mansion in fact.

In front of the main entrance is a chain-link fence and a guard tower of white-painted brick. A guard stood in the tower, surveying the outside grounds from behind the tinted glass. I could feel him watching me as I walked up the stairs with my partner, Stephen Weeks.

I was on the guard’s side. We were both members of the law enforcement community. Still, I felt a chill on my back as he watched me.

Climbing the steps, we passed a young girl walking down from visitor processing. She was around eleven years old, the age at which girls first start looking like the women they will become. (I have a daughter the same age.) This girl was pretty, with dark features. Her brown hair was tied back neatly into a bun. She wore a brand-new Easter dress but on her feet were dirty sneakers with no socks. The girl must have been visiting her father, and maybe her mother sent her back to the car to wait. Her eyes were wet and reddened, but when she saw me looking at her, she set her face—stubborn, almost proud—stared straight ahead, and walked deliberately down the concrete steps toward the guard tower. She was not going to let anyone see her cry.

Our contact at the prison was Lee Mann. Her official title is spokesperson, but she handles a variety of functions, including fielding media questions and requests, dealing with family members of inmates, and presenting the public face of McAlester to the world outside. Ms. Mann is an attractive woman, tall and slim, with short white hair. Her manner is candid and direct, even warm. She could be the tour guide at a dead president’s home instead of a maximum-security prison. Inside her office the decor was civil-service functional, aside from a collection of baseball caps from local homicide divisions, and any posters or pictures were generic. This was a room where inmates’ families, maybe sometimes inmates themselves, would come. Nothing personal, nothing human.

Lee Mann led us back outside, and we waited beneath the front tower while the guard lowered down a set of keys in a gray plastic bucket at the end of a long, knotted piece of rope. These were the keys to the deputy warden’s minivan, which would take us to H-Unit, the maximum-security block of McAlester, where the death row inmates are housed.

H-Unit—lock-down, supermax, whatever you want to call it—was built in 1990, following a violent prison riot in 1985, during which guards were taken hostage and several of them seriously injured. I talked to several prison employees who were there in 1985. They showed me pictures of the riot—inmates swarming the yard, guards bloody and bound. The prison museum has a collection of shivs and other weapons taken from the rioters. Having survived one nightmare, the Oklahoma Department of Corrections decided not to risk another. So they built H-Unit.

Designed by a prison committee to create a supermaximum facility in which physical contact between inmates and staff was kept to a minimum by a series of elaborate electronic security features, H-Unit is almost entirely constructed of steel and concrete, an earth-sheltered facility rising up out of the ground like some kind of huge root cellar.

Once we entered H-Unit’s Plexiglas and metal doors, the guards made us empty our pockets and take off our shoes. They patted us down but let us keep everything except for cell phones. A guard inside the control room gave Mann a set of archaic-looking keys, then opened the first of two steel-barred doors. We stepped inside—it was the size of an elevator—and the first door shut behind us with a resounding metallic thud. Then the second door opened and we walked out onto H-Unit. The floors were concrete, sealed and polished as smooth as glass. The walls and ceilings were also concrete. We walked down the hall—no windows or doors or people, just a long, narrow concrete maze. The bars ahead of us had been freshly painted.

The inmates on death row take pride in their unit, Mann said, after I remarked on how clean everything was. And we don’t have a shortage of labor.

Still, beneath the polished concrete and painted bars, there was a thick, heavy funk—the smell of men together, as in a barracks or a locker room, only worse. There was a feeling of suppressed violence, the tension one feels just before a fight. At the same time, you knew nothing was going to happen.

We passed a barred door that said LIBRARY. Inside were several individual metal cages, where the inmates could study the law or work on their cases without coming into contact with each other.

At the end of the hallway, H-Unit splits into four rows of double-tiered corridors or pods, each containing fifty double-occupancy cells. This is death row itself. We entered another set of double metal doors and stood in a cage that looked over two of the pods. Each of the pods is two stories high, with cells along the far wall (in addition to the double cells there are eight punishment cells for solitary confinement). Outside the doors is a narrow hallway and then a cage of metal bars enclosing the large open space between the pods, which run parallel to each other. Three times a day, a dumbwaiter carries meals from the ground floor up to the second level, where a trustee delivers the food to his fellow inmates.

Each cell is marked with a pair of letters—AA, BB, and so on. Behind the small, barred windows flicker the lights of small televisions. There is a man in each one of these cells, but you can’t hear them. The pod itself is eerily quiet, with only a muffled echo of what might be voices somewhere off in the distance. Each double cell measures seven feet seven inches by fifteen feet five inches, with two poured concrete bunks on either side of an uncovered toilet and sink. The only furniture consists of four shelves, also of poured concrete, that the inmates use as tables and TV stands. The walls are unpainted concrete, and the inmates are not allowed to decorate them in any way. The doors are solid metal, with a Plexiglas window covered by thick metal bars. There are no windows. Other than the glow of the TVs, the only light comes from two bare lightbulbs. Each cell is linked to the central command tower by intercom, which the guards control. The guards turn on the intercom when they need to communicate with the inmates; otherwise, it is kept off.

At one end of each pod is an exercise yard, nothing more than a dozen square feet of cement with a thick Plexiglas ceiling, so a little sunlight bleeds through. In one of the yards, five men were playing handball. In the other, a basketball game was going on. Death row prisoners are under twenty-three-hour lockdown—they get one hour outside their cells every day during the week and are confined to their cells during the weekend. They can spend their five hours a week with visitors, studying in the library, taking one of their three fifteen-minute showers allotted per week, or exercising in the yard.

Although they are not allowed to work out with weights, the inmates are in good shape from doing push-ups, sit-ups, and other isometrics. They run around inside the small concrete yard, sometimes laughing or joking, but always with a guarded manner, never letting down the wall.

Televisions and radios are a privilege that prisoners have to earn the right to have and pay for with their own funds. If they break prison rules, their televisions and radios, along with other privileges like visitors, can be taken away.

We don’t coddle our prisoners, Mann said.

Lee Mann pointed to a cell on the second floor. This was LL, where a prisoner awaiting execution was held. He was put there approximately a month before his execution.

No one has ever come into this cell and left, Mann said.

Death row houses the worst of the worst. The bottom of the gene pool. The men and women who have made the worst choices in life. It’s pretty hard to feel sorry for them.

We were still inside the cage overlooking the pods when we heard a cell door open behind us. A black guy with long dreadlocks walked out of the shower room. The prisoner greeted Mann and asked how she was doing. She stiffened a little. Dropping the friendly manner with which she had been addressing us, she answered him with a few clipped words.

She took us back out into the hallway and upstairs, past the visiting windows, where inmates’ families and friends can speak to them over telephone receivers and touch the thick Plexiglas, barred and embedded with chicken wire. Inmates are allowed four hours of visiting a week. Once they enter death row, inmates have no physical contact with friends or family. When inmates meet with their attorneys, officers view them through a one-way mirror. In addition to talking with their lawyers, inmates are allowed one fifteen-minute personal call a week on a mobile phone brought into their cells. When a prisoner is brought into LL, his phone and visiting privileges are expanded.

Down the hall from the visitors’ window is a door painted bright yellow. Behind that door is the death chamber.

Lee Mann opened the yellow door and led us into a narrow room with a split-level floor filled with two rows of cheap metal folding chairs. This is where the execution is witnessed by family and friends of the inmate, as well as Department of Corrections VIPs and any members of the media.

In 1966, James Donald French was the last person to be electrocuted in Old Sparky. The electric chair is now displayed in McAlester’s museum, where visitors can sit and pose for pictures. Lethal injection as a method of execution was developed in Oklahoma by a state senator and a medical examiner. In 1977, Oklahoma passed the first bill authorizing the use of lethal injection—Texas passed a similar bill the next day. After the Oklahoma law was passed, then warden of McAlester Norman Hess resigned, saying he did not want to participate in executions using lethal injection. In 1990, Charles Coleman became the first Oklahoma inmate to be killed by lethal injection. In case lethal injection is ever declared unconstitutional, the state has electrocution and firing squad provisions already established.

The Supreme Court struck down all existing death penalty statutes in 1972. In Furman v. Georgia, the Court ruled that the death penalty, as administered, was cruel and unusual punishment. Four years later, several states, including Oklahoma, rewrote their death penalty statutes to remedy the Supreme Court’s concerns. The Court upheld these new statutes, and executions were legal once again, although because of the appeals process guaranteed by these new laws, it took several years for executions to recommence.

The first person executed under the new guidelines was Gary Gilmore in 1977. When Gilmore was shot by a firing squad in Utah, I wrote a letter that was published in the Los Angeles Times: One small step for Gary Gilmore. One giant step for mankind. I believed that everyone on death row was guilty and deserving of death.

Oklahoma had its first execution by lethal injection in 1990. At that time the media requests were so numerous that the Department of Corrections (DOC) had to establish rather elaborate criteria to decide who got to see one (the largest and smallest newspapers, the largest and smallest television stations, a local radio station). Today there are very few media witnesses—usually just the Associated Press and one or two reporters from local newspapers. The district court judge who presided over the inmate’s trial is allowed to witness, as are the detectives involved in the original investigation, if they are still alive. Before executions became commonplace, there were two chairs for citizens at large, selected by lottery. At that time, many people wanted to see executions. Now interest has waned among the general public.

I asked Ms. Mann if she had ever witnessed an execution.

I don’t think it’s something that would make my job any better, she said. I’d rather not have any tugs that way.

The death chamber is separated from the witness seating area by a wall, most of which consists of a large, clear plate-glass window with a set of dark blinds that were raised for now.

Behind the witness observation room with its two rows of chairs is an even smaller room, with a single row of chairs behind a one-way tinted window. This is where the family and friends of the victims watch the inmate die. Family members of the victims are escorted into their seats well before the inmate’s witnesses enter.

Lee Mann opened another door and we walked into the death chamber.

The room measures some ten by fifteen feet. A small podium stands against the wall. This is where the warden will log, with minute precision, every action associated with the execution, what happened and when.

The execution gurney takes up most of the room. Without a human being strapped down on top of it, the gurney looks pretty harmless, a cross between a dentist’s chair and a massage table. The gurney is a converted American Sterilizer operating table taken from a hospital emergency room. The table has been customized, with crudely welded metal armrests and wool and leather wrist restraints and black nylon and Velcro body straps. White sheets and sterile paper cover the worn black vinyl cushions. A small pillow lies where the inmate’s head will rest.

A microphone is positioned on the wall above the head of the gurney. When the inmate is ready to give his final statement, the microphone will be lowered into place. Against the wall by the plate-glass window is a shelf holding a video monitor. The execution will not be recorded, but sometimes it is necessary to televise the execution on closed circuit so that additional witnesses, usually family members of victims, can watch in another room. Lee Mann told me that they would never record an actual execution because they are afraid of the tape getting into the wrong hands.

Across from the gurney is a white door that opens into LL cell.

On the day of execution, the inmate is woken around 6:00 or 7:00 A.M. The warden meets with him and tells him exactly what will happen that day. They take care of legal matters like the inmate’s will, if he needs one, and the disposition of his body.

Two corrections officers stand outside LL cell all day. The inmate is allowed visitors most of the day, but they are not permitted to touch; instead, he speaks with family and friends through the visitors’ windows.

Some inmates have been able to convince visitors to smuggle in drugs so they can tranquilize themselves or even commit suicide. In August 1995, Robert Brecheen overdosed on drugs hours before his scheduled execution. Prison officials rushed him to a local hospital and had his stomach pumped. Once Brecheen was conscious and stable, he was brought back to H-Unit and taken to the death chamber, where he was given a lethal injection. The state-contracted doctor who was to witness the execution followed Brecheen to the hospital and insisted that he perform the medical procedures in the emergency room. Then, after saving Brecheen’s life, the doctor accompanied the inmate to the execution chamber, where he made a formal pronouncement of death.

In addition to family, friends, and lawyers, the inmate may get visits from law enforcement officials who hope that he will be able to help them solve some of their open cases.

After spending the morning with his visitors, the inmate eats his last meal at noon. He is allowed to have anything available in the local community that costs up to fifteen dollars. Inmates are not allowed to use their own funds. Many of them order something they haven’t had for a long time, often junk food. Some of them want just Coke and potato chips or doughnuts. Others ask for food that has some sentimental value to them, like a breakfast cereal they ate as a child. Most order from one of the several Italian restaurants or fast-food joints in town. Most have had at least ten years to think about this meal. Many are disappointed.

They’ve been watching television for fifteen years, Lee Mann said. When they finally get to eat a Wendy’s hamburger, it’s not what they saw in the commercial.

After his last meal, the inmate is allowed to have his visitors back for a couple more hours. If the execution is scheduled for later at night, the inmate can eat a regular prison dinner off the line, if he’s still hungry. Recently, McAlester has been scheduling executions in the early evening; therefore, the noon meal is the last thing an inmate will eat.

An hour before the execution, the visitors are escorted out of LL. The prison chaplain comes into the cell to speak with the inmate, and to hear his confession and give him last rites if he is a Catholic.

The inmate is dressed in a light blue outfit that resembles surgical scrubs. About twenty minutes before the execution, the warden comes into LL and asks, Are you ready to walk with me?

The inmate follows the warden through the door and into the death chamber. Aside from Robert Brecheen, there has never been a problem.

By now they know, this is it, Lee Mann said. They accept the fact that they are going to die.

Minutes before the execution, H-Unit erupts into noise. Inmates bang on their cell doors and rattle the bars. They shout and wail. This continues until they know that the time of execution has passed and the inmate is dead.

At every execution, a group of family members of murder victims and death penalty supporters gathers outside the prison wall. Many of them arrive together in a large motor home. They have a somber tailgate party near a large signboard covered with photographs of their family members and other murder victims. Nearby, opponents of the death penalty hold a candlelight vigil. Again, often the same people show up for each execution. Depending on whether the crime was high-profile or not, the media presence can range from hundreds of journalists to merely a handful.

On the day of an execution, H-Unit basically shuts down. No inmate other than the one to be executed leaves his cell. There are no visitors other than those visiting the condemned.

While the inmate’s visitors are secured elsewhere, three men enter the prison. They arrive separately and do not know each other’s names. Their identities are kept secret from nearly every other prison employee.

They are the executioners.

Each man walks alone past the control room, through the double doors, down the empty hall, upstairs, and past the visitors’ windows. He opens the yellow door and walks into the death room. Behind a white door within the chamber itself, the three men gather in the executioners’ room, where they wait for the order to proceed. Each one of them wears a black hood.

The hoods were made by one of the secretaries at the prison from material that Lee Mann herself bought at Wal-Mart. While Mann was at the store, she saw an acquaintance, who asked her if she was shopping for Halloween costumes. I asked her why the executioners wore masks.

The masks make it a little more palatable, Mann said.

The executioners’ room is tiny, not much bigger than a large supply closet; there is one cinder-block wall—the other three are concrete—and shelving filled with sterile sheets, rubber gloves, and other medical necessities. A small biohazard trash bin sits on the floor by the door. The only light comes from a weak green bulb, which gives it the appearance of a photographer’s dark room.

The executioners set up three different chemical doses and saline solutions that are run through two holes in the wall and into the IV units in the inmate’s arms. A local hospital had provided the drugs, until the doctors there decided that participating in executions was contrary to their Hippocratic oath. For the same reason, the executioners are not doctors themselves, and the doctor in the death chamber is not there to participate in the actual execution, only to monitor the inmate and pronounce death, or in case of an emergency.

There is a phone in the witness seating area that a prison official uses to call the governor before the execution to make sure there will be no last-minute reprieve.

A reprieve is not likely to happen. Usually on the day before the execution, the U.S. Supreme Court will inform the inmate’s lawyer that all of his legal appeals have been exhausted. Governor Frank Keating has granted only one executive clemency; he reduced Phillip Dewitt Smith’s death sentence to life without parole on March 1, 2001, on the recommendation